Docket No. 462

In the Matter of Robert Burgmann

March 15, 1993

Disposition Agreement



This Disposition Agreement (Agreement) is entered into
between the State Ethics Commission (Commission) and Robert
Burgmann (Mr. Burgmann) pursuant to s. 5 of the Commission's
Enforcement Procedures. This Agreement constitutes a consented to
final Commission order enforceable in the Superior Court,
pursuant to G.L. c. 268B, s. 4(j).

On December 10, 1992, the Commission initiated, pursuant to
G.L. c. 268B, s. 4(a), a preliminary inquiry into possible
violations of the conflict of interest law, G.L. c. 268A, by Mr.
Burgmann. The Commission has concluded its inquiry and, on
February 23, 1993, by a majority vote, found reasonable cause to
believe that Mr. Burgmann violated G.L. c. 268A.

The Commission and Mr. Burgmann now agree to the following
findings of fact and conclusions of law:

1. Mr. Burgmann was, during the time here relevant, the
Sandwich Planning Board Chairman. As such, Mr. Burgmann was a
municipal employee as that term is defined in G.L. c. 268A, s. 1.

2. "RUCK" systems are nitrate reducing septic systems. SE
RUCK Systems Inc. (SE RUCK) is a Massachusetts corporation
licensed to design the RUCK system in Massachusetts for the
patent holders. For several years, SE RUCK attempted to obtain
the Department of Environmental Protection's (DEP) approval for
installation of the RUCK system in Massachusetts.

3. During the time here relevant, Mr. Burgmann was an
officer, director, employee and 20% owner of SE RUCK.

4. Ryder Woods Associates (Ryder Woods) was the developer
of a proposed 76 single-family unit affordable housing
subdivision in Sandwich.

5. On February 13, 1990, the Sandwich Zoning Board of
Appeals (ZBA) granted Ryder Woods a comprehensive permit with 29
conditions to build the above-mentioned development. Due to the
fact that the proposed project was located in a zone of
contribution to a public water supply; that the project itself
would not be serviced by town water but by individual wells; and
concerns regarding nitrate loading created by this development,
the ZBA imposed condition #26 which provided as follows:

Should DEP authorize the utilization of a septic system
designed to reduce nitrate loading [1] prior to the
completion of the development then the applicant shall be
required to install these new type systems. No septic system
shall be required to be removed after it has been installed
[2].

6. On January 29, 1991, Mr. Burgmann, as Planning Board
Chairman, wrote a memorandum on Planning Board stationery to the
Board of Health (BOH) Chairman stating:

This letter is to inform the BOH that the DEP has recently
approved a nitrate reducing system. Condition #26 of the
Ryder Woods Associates comprehensive permit requires all
homes in the development shall be serviced by a nitrate
reducing septic system. Therefore, the Planning Board
requests, that the BOH require the developers to adhere to
this Condition.

7. Depending upon the number of RUCK systems that would
have been required to have been installed at the Ryder Woods
project, the average fee per unit that would have been generated
for engineering services by SE RUCK would have been between $200
and $500.

8. Mr. Burgmann, as a 20% shareholder, would ultimately
have been a beneficiary of the fees generated by this project.

9. In a March 26, 1991 letter to Ryder Woods, the ZBA
stated that it was not requiring Ryder Woods to install the RUCK
system.

10. Section 19 of G.L. c. 268A, except as permitted by
paragraph (b), [3] prohibits a municipal employee from
participating [4] as such an employee in a particular matter [5]
in which to his knowledge he has a financial interest.

11. The determination or decision by the ZBA as to whether
it would require the installation of a nitrate reducing septic
system in the Ryder Woods affordable housing project in
accordance with condition #26 was a particular matter in which
the town had a direct and substantial interest.

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12. Mr. Burgmann, by writing the January 29, 1991
memorandum to the BOH advocating installation of the RUCK system,
was personally and substantially involved as the Planning Board
Chairman in the just described particular matter. Therefore, he
participated in that matter.

13. Mr. Burgmann, as an officer, director, employee and 20%
owner of SE RUCK, had a financial interest in seeing the RUCK
system installed in the Ryder Woods affordable housing project.
Mr. Burgmann was aware of that financial interest.

14. Therefore, by writing the January 29, 1991 memorandum
to the BOH, Mr. Burgmann participated as chairman of the Planning
Board in a particular matter in which he had a financial
interest, thereby violating s. 19.

In view of the foregoing violation of G.L. c. 268A by Mr.
Burgmann, the Commission has determined that the public interest
would be served by the disposition of this matter without further
enforcement proceedings, on the basis of the following terms and
conditions agreed to by Mr. Burgmann:

(1) that Mr. Burgmann pay to the Commission the sum of one
thousand ($1,000.00) as a civil penalty for violating G.L.
c. 268A, s. 19;

(2) that Mr. Burgmann waive all rights to contest the
findings of fact, conclusions of law and terms and
conditions contained in this Agreement in this or any other
related administrative or judicial proceeding to which the
Commission is or may be a party.


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[1] "Nitrate loading" refers to nitrates produced by septic
systems which can pollute the ground water.

[2] Mr. Burgmann did not participate in the drafting of this
condition nor is there any evidence that he did anything which
would have influenced the ZBA to impose this condition. The
project was modified and as reduced would generate 7.8 P.P.M. of
nitrates, which was 56% higher than levels recommended by the
Cape Economic and Development Commission and the Cape Cod
Commission.

[3] None of those exemptions applies here.

[4] "Participate," participate in agency action or in a
particular matter personally and substantially as a state, county
or municipal employee, through approval, disapproval, decision,
recommendation, the rendering of advice, investigation or
otherwise. G.L. c. 268A, s. 1(j). |

[5] "Particular matter," any judicial or other proceeding,
application, submission, request for a ruling or other
determination, contract, claim, controversy, charge, accusation,
arrest, decision, determination, finding, but excluding enactment
of general legislation by the general court and petitions of
cities, towns, counties and districts for special laws related to
their governmental organizations, powers, duties, finances and
property. G.L. c. 268A, s. 1(k).